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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blair v. Federal Insurance Company (9/7/2018) sp-7287

Blair v. Federal Insurance Company (9/7/2018) sp-7287

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  


           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

DANIEL  BLAIR,                                                   )  

                                                                 )          S                                

                                                                              upreme Court No. S-16388  

                                Appellant,                       )  


                                                                            Superior Court No. 3AN-12-11530 CI  

                      v.                                         )  


                                                                           O P I N I O N  




and CHARLES FOGLE,                                                                                                    

        No. 7287 - September 7, 2018  


                                Appellees.                       )



                      Appeal from the Superior Court of the State of Alaska, Third  


                      Judicial District, Anchorage, William F. Morse, Judge.  


                      Appearances:                Gerald   W.   Markham,   Friday   Harbor,  


                      Washington,  for  Appellant.                     Cheryl  L.  Graves,  Farley  &  


                      Graves, P.C., Anchorage, for Appellees.  


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      MAASSEN, Justice.  



                      A seaman sued his former employer and the former employer's liability  


insurer, claiming that the insurer had failed to pay him amounts due under the terms of  


a settlement agreement. The seaman asserted that the "policy limits" settlement included  


both the policy's stated limits and attorney's fees calculated under Alaska Civil Rule 82.  


The insurer, relying on the policy's notice that fees were included in the policy limits,  

----------------------- Page 2-----------------------

 argued that the settlement had been fully satisfied.                                                                                                                                                                                 The parties also disagreed about                                                                                           

 whether costs from a review of the seaman's medical bills were properly counted against                                                                                                                                                                                                                                                                     

 the policy limits.                                                             After contentious discovery, the superior court granted summary                                                                                                                                                                                                 

judgment for the insurer, finding that the policy's Rule 82 notice was valid and that the                                                                                                                                                                                                                                                                                    

 settlement had been satisfied.                                                                                                       The court awarded attorney's fees to the insurer as the                                                                                                                                                                                

 prevailing party.                                                         

                                                            The seaman appeals the grant of summary judgment, the denial of some                                                                                                                                                                                                                                   

 discovery, and the award of attorney's fees.                                                                                                                                                        We affirm the superior court's summary                                                                                                      

judgment and discovery rulings except with regard to whether the costs of the medical                                                                                                                                                                                                                                                                   

 review were properly deducted from the policy limits; we conclude that issues of fact                                                                                                                                                                                                                                                                                    

 precluded summary judgment on this issue.                                                                                                                                                       We reverse summary judgment only as to                                                                                                                                           

 that issue, vacate the attorney's fees award, and remand for further proceedings.                                                                                                                                                                                                                     

 II.                          FACTS AND PROCEEDINGS                                            

                              A.                           Facts  

                                                           Daniel Blair was injured in August 2008 while working onboard the F/V                                                                                                                                                                                                                                          

 INVINCIBLE, a vessel owned and operated by Charles Fogle.                                                                                                                                                                                                                        Fogle held a policy of                                                                         

 marine insurance issued by Federal Insurance Company. The policy's liability limit was                                                                                                                                                                                                                                                                                   

 "$1,000,000 Each Vessel . . . [for] Any One Accident or Occurrence."                                                                                                                                                                                                                                            It also contained              


 a notice, headed, "                                                         THIS POLICY LIMITS COVERAGE FOR ATTORNEY FEES  



 UNDER ALASKA RULE OF CIVIL PROCEDURE 82," which summarized Alaska  



 Civil Rule 82  and explained that "[i]f the limit of liability of the applicable coverage is  


 $1,000,000 or more, we will not pay or indemnify you for any combination of judgment  

                              1                            Alaska Rule of Civil Procedure 82(a) provides that, with some limited                                                                                                                                                                                                                           

 exceptions,   "the   prevailing   party   in   a   civil   case   shall   be   awarded   attorney's   fees  

 calculated under this rule."                                                                 

                                                                                                                                                                                        -2-                                                                                                                                                                           7287

----------------------- Page 3-----------------------

or claim settlement and attorney fees under Alaska Rule of Civil Procedure [sic] that                                                                                                                                                                                                                                                                                                       

exceeds the limit of liability of the applicable coverage."                                                                                                                                                                                                             

                                                              Blair and Federal, through their lawyers, negotiated over the course of                                                                                                                                                                                                                                                              

 several months and then reached a settlement agreement.                                                                                                                                                                                                               Neither party discussed Rule                                                                                     

 82 fees or the policy's Rule 82 notice during these negotiations.                                                                                                                                                                                                                                                        From the outset,                                    

however, the parties disagreed about the sum of $2,268.78 paid to Mahl's Medical                                                                                                                                                                                                                                                                                       

Review, a company that reviews medical bills in order to help "insurers save money by                                                                                                                                                                                                                                                                                                              

identifying and eliminating inaccurate, duplicate[,] and unwarranted charges."                                                                                                                                                                                                                                                                                                     Blair  

contended that the sum should not be deducted from the policy limits because Mahl's                                                                                                                                                                                                                                                                                          

was engaged to lower costs for Federal's benefit, not Blair's. Our record shows no clear                                                                                                                                                                                                                                                                                                

resolution of this issue during the negotiations.                                                                                                                                                                          

                                                              The parties signed their settlement agreement on December 27, 2009. The                                                                                                                                                                                                                                                       

agreement reads, in part:                                                                   

                                                              I, DANNY BLAIR, in exchange for the remaining policy                                                                                                                                                                                                

                                                              limits   under   the   vessel's   $1,000,000   P&I   [protection   and  

                                                              indemnity] policy do hereby release and forever discharge                                                                                                                                                                             

                                                              Charles Fogle . . . .  The P&I underwriter has calculated the                                                                                                                                                                                                        

                                                              remaining   policy   limits   at   $961,447.81   and   will   pay  that  


                                                              amount upon execution of this release. Mr. Blair reserves the  


                                                              right to claim additional amounts which he contends may be  


                                                             part of the policy limits, including any unpaid deductible.[ 

                                                              The vessel owner                                                                      and  vessel's insurers do                                                                                                not agree that                                   

                                                              additional sums are due but if these sums are determined to                                                                                                                                                                                                              

                                                             be due as properly part of the P&I limits under this policy                                                                                                                                                                      

                                                              they will be paid.                                                                

Federal paid the specified sum of $961,447.81 to Blair.                                                                                                                                                                                                          



                                                              In the original, the sentence reprinted here in strikethrough was crossed out  


by hand and initialed by Blair.  

                                                                                                                                                                                                  -3-                                                                                                                                                                                    7287  

----------------------- Page 4-----------------------

           B.        Proceedings  


                    Nearly three years later - on December 11, 2012 - Blair filed suit against  


Federal.   He alleged that Federal had breached the settlement agreement by paying  


"substantially  less"  than  the  remaining  policy  limits,  though  his  complaint  did  not  


identify what had not been paid.  In May 2013 he filed a motion for partial summary  


judgment that clarified his claim.  He argued that "[i]n arriving at its 'remaining policy  


limits' calculation Federal failed to address its obligation for [Rule] 82 attorney fees."  


Although  acknowledging  the  existence  of  the  Rule  82  notice  in  the  policy,  Blair  


contended that the notice did not comply with governing regulations of the Alaska  


Division of Insurance and was therefore void. Thus, Blair argued, the policy limits were  


the $1 million face value of the policy, less amounts already paid, plus Rule 82 attorney's  


fees.  Blair also argued that Federal had improperly deducted the Mahl's bill from the  


policy limits.  


                     Federal cross-moved for summary judgment, arguing that the policy's  


Rule 82 notice was valid and that the settlement was for the sum certain of $961,447.81,  


which it had promptly paid.   Blair then moved under Alaska Civil Rule 56(f) for a  


continuance to conduct additional discovery, and the continuance was granted.  


                     A period of contentious discovery followed, in which the superior court  


conducted  in  camera  review  of  some  documents  Federal  claimed  were  privileged,  


ordered production of some requested documents but not others, and denied a motion to  


compel brought by Blair. The court then granted summary judgment in favor of Federal.  


It  found  that  Federal's  Rule  82  notice  was  lawful  because  it  conformed  with  the  


standards imposed by the Division of Insurance. It also "construe[d] the Release to mean  


that parties completely settled the claim against the P&I policy by having Federal pay  


Blair  $961,447.81."               The  court  awarded  Federal,  as  the  prevailing  party,  Rule  82  


attorney's fees and costs.  

                                                                -4-                                                         7287

----------------------- Page 5-----------------------

                           Blair appeals the superior court's orders granting Federal's cross-motion   

for summary judgment, denying his discovery motion, and awarding Rule 82 attorney's                                                                       

fees to Federal.                 

III.          STANDARD OF REVIEW                    


                           We review a grant of summary judgment de novo.                                                                                          

                                                                                                                                "We will affirm a grant  


of summary judgment if there are no genuine issues of material fact and if the movant  



is entitled to judgment as a matter of law."                                            We draw all reasonable inferences in favor  



of the nonmoving party. 


                           We review a superior court's discovery rulings, including decisions about  



"discovery sanctions, such as spoliation remedies, for abuse ofdiscretion."                                                                          We will find  


an  abuse  of  discretion  upon  a  showing  that  a  decision  was  "arbitrary,  capricious,  



manifestly unreasonable, or stemmed from improper motive." 


                           Whether  the  superior  court  applied  the  appropriate  legal  standard  in  



awarding attorney's fees is a question of law that we review de novo. 

              3            Alakayak  v.  B.C.  Packers,  Ltd.,  48  P.3d  432,  447   (Alaska  2002)   (citing  

Moore  v.  Allstate  Ins.  Co.,  995  P.2d  231,  233  (Alaska  2000)).   

              4            Id.  (citing  Moore,  995  P.2d  at  233).   

              5            Id.  (citing  Moore,  995  P.2d  at  233).  

              6            Todeschi  v.  Sumitomo  Metal  Mining  Pogo,  LLC,  394  P.3d  562,  570  (Alaska  

2017)   (citing   Mills   v.   Hankla,   297   P.3d   158,   164-65   (Alaska   2013));   Madonna   v.  

 Tamarack  Air,  Ltd.,  298  P.3d  875,  878  (Alaska  2013).   

              7            Lindbo v. Colaska, Inc., 414 P.3d 646, 651 (Alaska 2018).  


              8            State v. Jacob, 214 P.3d 353, 358 (Alaska 2009).  


                                                                                    -5-                                                                            7287

----------------------- Page 6-----------------------



            A.	        The Superior Court Did Not Err By Entering Summary Judgment  


                       Against BlairOnTheIssueWhetherFederal Owed Rule82Attorney's  


                       Fees Under The Settlement.  


                       We first address whether Federal's Rule 82 notice is valid and enforceable.  


Concluding that it is, we consider whether there is any other basis on which Blair could  


believe that the parties' settlement agreement entitled him to attorney's fees beyond the  


policy limits; we conclude there is not and that the superior court properly granted  


summary judgment on this issue.  


                        1.	        Federal's Rule 82 notice conformed to the notices written by the  


                                   Division of Insurance.  


                       A  regulation  promulgated  by  the  Division  of  Insurance  provides  two  


options for an insurer wanting to limit its exposure for Rule 82 attorney's fees to its  



stated policy limits.                 First, an insurer may use a notice that "conform[s]" with one of  



four model forms written by the Division (referred to as Notices A, B, C, and D). 


Alternatively, the insurer may use a notice of its own devising, provided it obtains  


written approval from the Division's director "upon a determination that the proposed  



notice is substantially equivalent to" any one of the Division's four models. 


                       In Therchik v. Grant Aviation, Inc. we decided that for a notice to be found  


to be "conform[ing]," it must follow the Division's model forms far more closely than  



a notice the director approves as "substantially equivalent."                                             A conforming notice must  


be "very close to identical" to a model form, though it need not be "word-for-word  

            9           3 Alaska Administrative Code (AAC) 26.550 (2016).                                               

            10          3 AAC 26.550(b)(1).  


            11          3 AAC 26.550(b)(2).                     



                       74 P.3d 191, 196-97 (Alaska 2003).  

                                                                         -6-	                                                                  7287

----------------------- Page 7-----------------------


identical."                  It may contain "minute deviations, such as immaterial punctuation errors,                                                                                    


that would not diminish the quality of notice or the substantive message."                                                                                                           

                                                                                                                                                                            An insurer's  


notice that differs from the model forms in "substance, tone, clarity, [or] directness"  




would not "conform." 

                               Federal does not dispute that it did not obtain the director's approval of its  


Rule 82 notice "upon a determination that [it was] substantially equivalent" to one of the  


Division's modelforms. The parties' disagreement focuses instead on whether Federal's  


notice conformed with any of the four models.  Blair initially asserted that Federal's  


notice "grossly fails to strictly comply" because it did not identify which of the model  


forms it was intended to follow and it failed to include the Division's heading.  The  


Division's notices have the following five lines at the top of the first page:  



                                                                   DIVISION OF INSURANCE

                                ATTORNEY FEES COVERAGE NOTICE [A, B, C, OR D]


                                     UNDER ALASKA RULE OF CIVIL PROCEDURE 82

Blair argued that the first three lines of this heading were necessary so the insured would                                                                                                

                                                                                                                                                                              16       Federal  

know   that   Federal's   Rule   82  notice   was   "an   Alaskan   official   notice."                                                                                              

responded that its notice was a valid combination of relevant information from the  


Division's Notices B and C with some minor differences in font.  


                               The superior court rejected Blair's argument that the notice had to include  


the entirety of the Division's heading.  The court characterized the first three lines as  


                13             Id.  at 196.   

                14             Id. at 196-97.  


                15             Id.  at 198.              



                               Emphasis omitted.  

                                                                                                 -7-                                                                                         7287

----------------------- Page 8-----------------------

"simply    identif[ying]    the    notices    as    being    promulgated    by    the    Division    and  

distinguish[ing] between the four Division notices."                                                                                                                                                  Blair maintains his argument on                                                                                    

appeal, contending that "the Director wanted it clear this was an                                                                                                                                                                              Alaskan official notice                                       

from the agency                                                  charged with the insured's protection                                                                                                                , not merely some insurance                                             

                                                                                                                                                                  17   He argues that using the Division's entire  

company incomprehensible 'boiler plate.' "                                                                                                                                                                                                                                                                     

heading verbatim would give the notice greater weight and make it more likely to be  




                                                  We agree that the headings in an insurance policy should be designed to  


attract the insured's attention to the policy's important provisions, but we conclude that  


Federal accomplished this with its heading, the first two lines of which are reproduced  


directly from the Division's model forms:  


                                        THIS POLICY LIMITS COVERAGE FOR ATTORNEY'S FEES

                                                            UNDER ALASKA RULE OF CIVIL PROCEDURE 82

                                                                                                                            COMBINED FORM

Adding the Division's name and the letter designations of its model forms would dilute                                                                                                                                                                                                                        

the directness of the notice's heading. It could also be misleading: Federal's notice was                                                                                                                                                                                                                            

not  an "Alaskan official notice" but a conforming one created by Federal.                                                                                                                                                                           

                                                  Although the nonconformance argument Blair                                                                                                                                             made in his motion for                                                        

summary judgment addressed only the notice's heading, the superior court carefully                                                                                                                                                                                                               

scrutinized the body of Federal's notice and noted several other differences between it                                                                                                                                                                                                                                       

and the Division's model forms.                                                                                              Federal's notice, except for the heading, is all in the                                                                                                                                    

same typeface.                                              In the Division's Notices, however, the third and fourth paragraphs                                                                                                                                                          

(explaining the limitations on coverage) are in bold and the fifth paragraph (advising                                                                                                                                                                                                          

insureds that they may be exposed to attorney's fees liability) is in bold italics.                                                                                                                                                                                                                      As the   

superior court noted, these different fonts were presumably used for emphasis.                                                                                                                                                                                                                        But the   



                                                  Emphases in original.  

                                                                                                                                                             -8-                                                                                                                                                  7287  

----------------------- Page 9-----------------------

 court also found that "the extent of the boldface in the Division's Notices undercut its                                                                                                                                                                                                                                                                                                                                                                                

 effectiveness"; that the use of boldface for only the most important words would have                                         

been more likely to make a difference to a reader; and that overall "the differences in                                                                                                                                                                                                                                                                                                                                                                                    

typeface have no significance in substance or clarity."                                                                                                                                                                                                                                                     Blair does not challenge these                                                                                                               

 conclusions in his opening brief, so we need not decide whether we agree.                                                                                                                                                                                                                                                                                                                                              

                                                                         The superior court also noted that Federal's "Combined Notice" combined                                                                                                                                                                                                                                                                                  

 introductory language from the Division's Notice B - addressing suits "in which we                                                                                                                                                                                                                                                                                                                                                                                   

have a right or duty to defend an insured within the limits of liability" - and Notice C                                                                                                                                                                                                                                                                                                                                                                                     

-  addressing suits "in which we have neither a right nor a duty to provide a defense but                                                                                                                                                                                                                                                                                                                                                                             

we have agreed to indemnify an insured for the costs of defense within the limits of                                                                                                                                                                                                                                                                                                                                                  

 liability."   Federal's notice combined these phrases to read, "In any suit in Alaska in                                                                                                                                                                                                                                                                                                                                                                                  

which we have a right or duty to defend an insured or in which we have neither a right                                                                                                                                                                                                                                                                                                                                                                

nor a duty to provide a defense."                                                                                                                                                   It left out the concluding phrase from Notice C:                                                                                                                                                                                                                        "but  

we have agreed to indemnify an insured for the costs of defense."                                                                                                                                                                                                                                                                                                           The superior court                                                            

 overlooked this omission when it found that the combined language did "not change the                                                                                                                                                                                                                                                                                                                                                                                

 substance of the notice" and conformed to the Division's model notices.                                                                                                                                                                                                                                                                                                                                     

                                                                         Blair argues that the omitted phrase was "essential to understanding the                                                                                                                                                                                                                                                                                                                    

 [Rule] 82 limitation in the context of a P&I policy." He asserts, however, that "[p]utting                                                                                                                                                                                                                                                                                                                                      

this [argument] in his brief would make it seriously over-length," and he refers us to his                                                                                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                      18            Though given more attention in Blair's reply than his  

 summary judgment pleadings.                                                                                                                                                                                                                                                                                                                                                                                                                                          

 opening brief, the argument is inadequately briefed, and we decline to consider it.19   We  


                                     18                                  We note that Blair's opening brief is already overlength, and that its 32                                                                                                                                                                                                                                                                                                                      

pages of facts and proceedings fail to focus on what was relevant to the issues actually                                                                                                                                                                                                                                                                                                                                                   


                                     19                                 Kay v. Danbar, Inc., 132 P.3d 262, 265 n.1 (Alaska 2006) ("Because Kay's  



                                                                                                                                                                                                                                     -9-                                                                                                                                                                                                                     7287

----------------------- Page 10-----------------------

therefore affirm the superior                                    court's decision                     on   summary   judgment that Federal's                        

Rule 82 notice was valid.                                

                             2.	           The valid Rule 82 notice resolves the objective meaning of the                                                                                 

                                           settlement as to attorney's fees.                                        

                             We turn to the interpretation of the settlement agreement in light of our                                                                           

conclusion that Federal's Rule 82 notice is valid. "When interpreting a contract, the goal                                                                                      


 'is to give effect to the reasonable expectations of the parties.' "                                                                                                 

                                                                                                                                             In order to ascertain  


the parties' reasonable expectations, we look to the written agreement and "extrinsic  



evidence regarding the parties' intent at the time the contract was made."                                                                                      "The intent  


of the parties when entering a contract is a question of fact and . . . summary judgment  


is improper when the evidence before the superior court establishes a factual dispute as  



to the intent of the contracting parties." 


                             In this case there is no dispute that the insurance policy informed Blair that  


Federal would not be liable for Rule 82 attorney's fees in excess of the policy limits. We  


have determined that Federal's Rule 82 notice is valid.  Blair does not contend that his  


claim  relies  on  some  ambiguity  in  the  notice's  language.                                                                     The  parties'  settlement  

               19            (...continued)  


brief merely incorporates his superior court arguments on the summary judgment issues,  


we deem these issues to be inadequately briefed, and we decline to consider them.");  


Anchorage Nissan, Inc. v. State , 941 P.2d 1229, 1240 (Alaska 1997) ("We need not  


consider arguments which a party on appeal merely adopts and incorporates by reference  


to its lower court memoranda.").  

              20            Nautilus Marine Enters., Inc. v. Exxon Mobil Corp., 305 P.3d 309, 315  


(Alaska 2013) (quoting Villars v. Villars, 277 P.3d 763, 768 (Alaska 2012)).  


              21            Fairbanks N. Star Borough v. Tundra Tours, Inc., 719 P.2d 1020, 1024  


(Alaska 1986).  


              22            K &K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 712 (Alaska 2003).  


                                                                                        -10-	                                                                                7287

----------------------- Page 11-----------------------

 agreement mentions attorney's fees only when listing them among the claims that Blair                                                                                                                                                                                                                                                

 expressly agreed to "release and forever discharge" "in exchange for the remaining                                                                                                                                                                                                                             

policy limits," which the agreement represents to be $961,447.81.                                                                                                                                                                                                          Nor does Blair cite                                              

 any extrinsic evidence in support of his claim; he does not allege that the parties ever                                                                                                                                                                                                                                               

 discussed attorney's fees during their negotiations.                                                                                                                                                         Even viewing the facts in the light                                                             

most favorable to Blair, there                                                                                     is simply no evidence that he reasonably expected anything                                                                                                                                           

 in settlement other than the policy limits as the policy defined them.                                                                                                                                                                                   

                                                      At oral argument Blair's counsel acknowledged that "we should have been                                                                                                                                                                                                           

more forthcoming" during negotiations by bringing up the attorney's fees issue.                                                                                                                                                                                                                                                           He  

 suggested,   however,   that   it   might   be   appropriate   for   parties   to  leave   some   terms  

unresolved during negotiations and "see what happens with the law," based on the                                                                                                                                                                                                                                                             

possibility that successful litigation in a different case will support a claim to more                                                                                                                                                                                                                                             

money before the statute of limitations runs. But assuming that was Blair's strategy here,                                                                                                                                                                                                                                             

he so closely guarded his claim to Rule 82 fees that there is no evidence it ever existed.                                                                                                                                                                                                                                                                    

 "Themutual assent requirement 'cannot be defeated by                                                                                                                                                                   theunexpressed                                                   subjectiveintent   

 of one of the parties; rather[] it must rest on an objective manifestation of mutual intent                                                                                                                                                                                                                                       

                                                                                                                                                                                         23   Blair objectively manifested his intent  

regarding the essential terms of the contract.' "                                                                                                                                                                                                                                                                                   

to settle the case for policy limits, and, with the exception noted in the section that  


 follows, the superior court did not err when it found that the parties completely settled  


Blair's claim, including any claim to attorney's fees.  


                           B.	                        It Was Error To Enter Summary Judgment For Federal On The Issue  


                                                      Of The Bills From Mahl's Medical Review.  


                                                      Blair asserts that the superior court erred when it entered final judgment  


without ruling on his claim that Federal improperly deducted the Mahl's payment from  




                                                      Colton v. Colton, 244 P.3d 1121, 1128 (Alaska 2010) (quoting Howarth v.  


First Nat'l Bank of Anchorage, 596 P.2d 1164, 1167 n.8 (Alaska 1979)).  

                                                                                                                                                                      -11-	                                                                                                                                                                             7287  

----------------------- Page 12-----------------------

the policy limits.                                                         Blair squarely raised this claim in his motion for summary judgment,                                                                                                                                                                                               

but the superior court's decision addressed only the Rule 82 issue, finding in Federal's                                                                                                                                                                                                                                                         

favor.  Federal contends that the court did not overlook the Mahl's payment issue but                                                                                                                                                                                                                                                                                      

rather implicitly rejected Blair's argument when it ruled that his claim was completely                                                                                                                                                                

 settled   by   Federal's   payment  of $961,447.81                                                                                                                                                            under   the settlement agreement.                                                                                                                      But  

whether the court failed to rule on the issue or implicitly ruled against Blair, we conclude                                                                                                                                                                                                                                                       

it was error because fact issues should have precluded summary judgment.                                                                                                                                                                                                                                                                 

                                                           In the settlement agreement, the sentence reserving Blair's "right to claim                                                                                                                                                                                                                            

additional amounts which he contends may be part of the policy limits" is stricken and                                                                                                                                                                                                                                                                                    

initialed by Blair, but the next sentence remains: "The vessel owner and vessel's insurers                                                                                                                                                                                                                                                              

do not agree that additional sums are due but if these sums are determined to be due as                                                                                                                                                                                                                                                                                          

properly part of the P&I limits under this policy they will be paid."                                                                                                                                                                                                                                  Federal's attorney   

appears   to   have   conceded   at   his   deposition   that   the   settlement   agreement's   phrase  

                                                                                                                                                                                                                                        24               The  other  extrinsic  evidence  

"additional   sums"   referred   to   the   Mahl's   payment.                                                                                                                                                                                                                                                                                    

reinforces this conclusion:  Blair contested the Mahl's payment from the time of his first  


letter discussing settlement. The record also contains emails showing that the parties had  


 still failed to reach agreement on the Mahl's payment a week before the settlement  


agreement was signed.   And the underlying policy is reasonably susceptible to two  


interpretations:  either  the  Mahl's  payment  was  a  legitimate  expense  of  the  insured  


charged against the policy limits or, as Blair argued, the services were analogous to those  


provided by an adjuster and should be carried by the insurer.  


                             24                            The attorney also testified, however, that this line was meant to be stricken                                                                                                                                                                                                                

because the Mahl's payment issue had been resolved. But because Federal prevailed on                                                                                                                                                                                                                                                                                           

 summary judgment, we view the evidence in the light most favorable to Blair.                                                                                                                                                                                                                                                                  Alakayak  

v.  B.C. Packers, Ltd.                                                                    , 48 P.3d 432, 447 (Alaska 2002) (citing                                                                                                                                     Moore v. Allstate Ins. Co.                                                                                       ,  

995 P.2d 231, 233 (Alaska 2000)).                                                                                                                         

                                                                                                                                                                                     -12-                                                                                                                                                                            7287

----------------------- Page 13-----------------------

                                  We conclude there was a genuine issue of material fact as to whether the                                                                                                           

 issue of the Mahl's payment was resolved or was left open for later determination.                                                                                                                               We  

therefore reverse the grant of summary judgment on this narrow issue.                                                                                                 

                  C.	             Blair Demonstrates No Abuse Of Discretion In The Superior Court's                                                                                                     

                                  Denial Of His Discovery Motions.                                    

                                  Blair also asserts that the superior court abused its discretion by improperly                                                                                 

 denying discovery.                                His briefing of the issue is cursory and confusing.                                                                               He refers to an                   

 attorney's bills and files from the Coastal Marine Fund, which he alleges has acted as                                                                                                                                


Federal's agent.                                                                                                                                                                                                   

                                                 He provides no citations to the record, cites no legal authority, and  



 does not explain how the court's rulings prejudiced him.                                                                                              Federal's discussion of the  


 discovery issues helps our understanding of them, but it would be anomalous for us to  


 allow the appellee's helpfulness to resurrect arguments the appellant has waived by his  



 inadequate briefing.                                     In short, Blair gives us no basis for determining that the superior  


 court abused its discretion in any of its discovery rulings.  

                 25               Blair's discovery argument also mentions "Bauer/Moynihan documents,"                                                                                       

not further explained, but he describes them as "belatedly produced," so we assume his                                                                                                                               

 claim of error does not extend to them.                                                             

                 26               Blair cites to earlier pages of his brief for "[a] description of his denial of  


 discovery into Fogle's agents['] documents of events surrounding the execution of  


Blair's release," but we do not find those earlier pages any more helpful in constructing  


Blair's arguments.  


                 27               See Windel v. Carnahan, 379 P.3d 971, 980 (Alaska 2016) ("[W]aiver due  


to inadequate briefing 'is not correctable by arguing the issue in a reply brief.' " (quoting  


Adamson v. Univ. of Alaska , 819 P.2d 886, 889 n.3 (Alaska 1991))). In Juelfs v. Gough,  


41 P.3d 593, 596 (Alaska 2002), we declined to find an issue "waived on the basis of  


 cursory briefing" in part because the appellee "accurately perceive[d] [the appellant's]  


 argument and respond[ed] to it."  But the appellant in that case was unrepresented, and  


 even so she made her argument "implicitly and in a manner that we can easily review,"  


 id., which is not the case here.  


                                                                                                         -13-	                                                                                                  7287

----------------------- Page 14-----------------------

                   D.	                The Superior Court Did Not Err By Deciding That Maritime Law Did                                                                                                                                  

                                     Not Preclude An Award Of Rule 82 Attorney's Fees.                                                                                             

                                      Our   conclusion   that   one   substantive   claim   remains   to   be   resolved   on  

remand - regarding the payment to Mahl's Medical Review - requires the superior                                                                                                                                            

court to also reconsider its prevailing party determination and attorney's fees award. For                                                                                                                                               

the sake of efficiency we address Blair's argument that Federal cannot recover Rule 82                                                                                                                                                     

fees because Blair's claim arose in admiralty.                                                     

                                     We rejected the same argument more than 30 years ago in                                                                                                                     Williams v.   

Eckert, in which we held that a plaintiff who sued in state court to recover a vessel was                                                                                                                                              


entitled to Rule 82 attorney's fees when he prevailed.                                                                                                                                                                                   

                                                                                                                                                        We noted that "Congress has not  


prohibited such an award in state actions arising out of the admiralty jurisdiction of the  


United States" and that "an award of attorney's fees in a state court does not frustrate or  


displace the essential  features of substantive maritime law" because "[i]t is merely  



remedial in nature."                                          We extensively revisited  Williams in Hughes v. Foster Wheeler  

 Co., in which we concluded once again that Rule 82 was not inconsistent with federal  



law and could be applied to mariners' claims brought in state court. 

                                      Blair does not engage significantly with our discussion in  Williams and  


Hughes, much less carry his "heavy threshold burden of showing compelling reasons"  


for overturning these precedents.31                                                                 His central argument is that attorney's fees awards  


may chill future claims brought by other mariners and that courts must be particularly  


                   28                 643  P.2d  991,  997  (Alaska   1982).    

                   29                Id.  

                   30                 932  P.2d  784,  786-91  (Alaska   1997).  

                   31                McCrary  v.  Ivanof  Bay  Vill.,  265  P.3d  337,  340-41  (Alaska  2011)  (quoting  

 Guerrero  ex.  rel.  Guerrero  v.  Alaska  Hous.  Fin.  Corp.,  123  P.3d  966,  982  n.104  (Alaska  


                                                                                                                    -14-	                                                                                                           7287

----------------------- Page 15-----------------------


solicitous of sailors as "the wards of admiralty."                                                                                    But many would-be civil plaintiffs                                    

face the same potential "chilling" effect. Accordingly, the factors listed in Rule 82(b)(3)                                                                                                                    

allow the court to vary an award based on considerations including "the extent to which                                                                                                                             

a given fee award may be so onerous to the non-prevailing party that it would deter                                                                                                                                   

similarly situated litigants from the voluntary use of the courts"                                                                                                       33 and "other equitable  

factors  deemed  relevant."34                                                   Because  federal  law  does  not  displace  Rule  82  when  


mariners bring their suits in state court, and because Rule 82 accommodates the concern  


Blair presses on appeal, we see no reason to again reconsider Williams and Hughes . The  


superior court did not err in deciding that Rule 82 applied to this case.  


V.                CONCLUSION  

                                   WeAFFIRMthesuperior court'ssummaryjudgment and discoveryrulings  


except with respect to the claim regarding Mahl's Medical Review.  We REVERSE the  


entry of summary judgment on this issue, VACATE the attorney's fees award, and  


REMAND for further proceedings consistent with this opinion.  


                  32               See Brown v. State                                , 816 P.2d 1368, 1371 (Alaska 1991).                                                                  



                                   Alaska R. Civ. P. 82(b)(3)(I).  



                                   Alaska R. Civ. P. 82(b)(3)(K).  

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